Judgment:
(Writ Petition under Articles 226 of the Constitution of India)
(Contempt Petition under Article 215 of the Constitution of India)
1. W.P. (S) Nos.5043 of 2008 and 1690 of 2009 and Contempt Case (Civil) No.313 of 2008, arise from the same cause of action, thus, all the petitions are being considered and disposed of by this common order.
2. Challenge in W.P. (S) No.5043 of 2008 is to the order dated 30-6-2008 whereby the petitioner was transferred as Assistant Grade III from the office of Executive Engineer (EandM), Sakri to the office of Executive Engineer, Water Resources Division, Kota, on his own expenses, and to the order dated 2-9-2008, whereby the representation of the petitioner submitted against the order dated 30-6-2008 was dismissed with change from the word `own expenses' to ‘administrative reasons'. Further, the respondent No.2 may be restrained from passing any transfer order.
3. Before filing W.P. (S) No.5043 of 2008, the petitioner preferred a writ petition being W.P. (S) No.3941 of 2008 (Sunil Kumar Sharma v. State of Chhattisgarh and Others) impugning the order dated 30-6-2008 on the ground that the petitioner has never made any application for his transfer, thus transfer on his own expenses is bad and vitiated.
4. By order dated 23-7-2008, on the submission of learned State counsel that if the representation was made, the same shall be considered and decided by the concerned authority, in accordance with law and on its own merits, within a period of two weeks from the date of receipt of the representation, W.P. (S) No.3941 of 2008 was disposed of with a further direction that no coercive steps would be taken against the petitioner, till the disposal of the representation.
5. Thereafter, a representation was made by the petitioner on 25--7-2008. The Under Secretary to the Government, Department of Water Resources, by order dated 2-9-2008 dismissed the said representation amending the impugned order dated 30-6-2008 that in place of `own expenses' it should be read as `administrative reasons'. Being aggrieved, the petitioner filed the instant petition, W.P. (S) No.5043 of 2008 on 9-9-2008 (for short referred to as `the first petition').
6. In the first petition by order dated 15-9-2008 an interim order with regard to status quo in respect of placement of the petitioner, as obtained on 15-9-2008, was directed to be maintained till the next date of hearing, which continued, thereafter.
7. In the meantime, the petitioner preferred a contempt petition being Contempt Case (Civil) No.313 of 2008 on 11-11-2008 praying that suo motu cognizance of the criminal contempt against the respondents therein be taken, as they have dismissed the representation of the petitioner after changing the word from `own expenses' to `administrative reasons', which amounts to contempt of the Court.
8. In the contempt petition notice was issued. The respondent No.1 in his reply submitted that the petitioner was relieved from his original place of posting vide order dated 22-7-2008 pursuant to the impugned order dated 30-6-2008. Thereafter, the order dated 23-7-2008 passed by this Court in W.P. (S) No.3941 of 2008 directing that no coercive steps shall be taken against the petitioner, till the disposal of representation, was of no consequence.
9. The respondent No.2 in his reply, reiterating the same submission, further submitted that the correct order was passed on 2-9-2008 and thereafter, the status quo order was passed by this Court in W.P. (S) No.5043 of 2008 on 15-9-2008. The correct order dated 2-9-2008 was not the fresh order; therefore, the petitioner was under an obligation to comply with the earlier order dated 30-6-2008, which was given effect to on 22-7-2008.
10. The petitioner, thereafter, preferred another writ petition being W.P. (S) No.1690 of 2009 on 27-3-2009 seeking a direction to release the salary of the petitioner w.e.f. 1-8-2008.
11. The Executive Engineer (EandM), Light Machinery, Nulcoop and Gate Division, Sakri, rejected the application of the petitioner for releasing the salary on 6-11-2008 stating that the petitioner was not entitled to any salary in view of the opinion rendered by the Advocate General. Unfortunately, it was further stated that in that respect, no correspondence should be done by the employee.
12. On the other hand, learned counsel appearing for the State would submit that it is true that there was no application for transfer on the request of the petitioner and the petitioner was relieved from the original place of posting to the new place of posting on 22-7-2008. Thereafter, the correction was made on 2-9-2008 to the effect that the word `own expenses' be corrected as `administrative reasons'.
13. The Under Secretary submitted his reply stating the reasons for transferring the petitioner was on administrative reasons.
14. I have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto.
15. There is no dispute that the first transfer order dated 30-6-2008 was passed on the own expenses of the petitioner. It is also not in dispute that the petitioner did not make any application for his transfer, therefore, the order was bad, however, on the request of learned State counsel in W.P. (S) No.3941 of 2008, the State was directed to consider and decide the representation of the petitioner, in accordance with law and on its own merits. Subsequently, by order dated 2-9-2008 the representation of the petitioner was rejected by changing the word from `own expenses' to `administrative reasons'.
16. The authorities are playing with the word from `own expenses' to `administrative reasons'. They failed to appreciate that there is a substantial difference between the transfer on `own request' and transfer on `administrative reasons'.
17. If the transfer is made on the basis of administrative exigency that is presumed to be in public interest and in that event the Court does not interfere with unless there is an allegation of mala fide or infringement of statutory rules and regulations or non-competence of the officer passing the transfer order.
18. The transfer on own request without there being a request clearly indicates that there was no administrative exigency and, as such, the petitioner was not given transfer allowance as is legally permissible to other employees who were transferred in administrative exigency and in the public interest
19. The authorities while passing the order dated 2-9- 2008 ought to have appreciated the facts and circumstances, therefore, the first order dated 30-6-2008 was not sustainable. The authorities without appreciating the legal provisions reiterated the order just by changing the word `own expenses' to `administrative reasons'. Thus, it can safely be held that there was no application of mind in passing the order.
20. So far as grant of salary and other allowances is concerned, the order dated 6-11-2008 appears to have been passed without application of mind. The understanding of the officers is contrary to the well settled principles of law that if the petitioner is protected by some order passed by this Court, the petitioner/employee cannot be punished for approaching the Court. The last sentence that the employee should not enter into correspondence amounts to deprivation of the right of the petitioner/employee from seeking redressal of his grievances, which is violative of the well settled norms of the service jurisprudence.
21. The petitioner is entitled to the pay and allowances from the date the first petition i.e. W.P. (S) No.3941 of 2008 was disposed of by this Court i.e. on 23-7-2008 wherein it was directed that no coercive steps shall be taken against the petitioner, till the disposal of the representation and thereafter, from the date of status quo order passed in W.P. (S) No.5043 of 2008 i.e. 15-9-2008.
22. The respondents have wrongly taken the view that since the petitioner was relieved by order dated 22-7-2008, he was not entitled to salary. The first order dated 30-6-2008 has not been found as correct order; therefore, the view of the respondents that the petitioner was relieved on 22-7-2008 pursuant to the bad order is unsustainable in the eyes of law.
23. This is a case where it appears that it is not a routine transfer, but the same was done with the sole purpose to harass the petitioner and in the course, the officers did not appreciate the letter and spirit of the orders passed by this Court and took a decision as per their whims and fancies.
24. The respondents have sought to arrogate themselves the power of interpretation of the order passed by this Court, which is not within the jurisdiction of the respondent officers, as an order passed by the Court is binding on all the officers within the territorial jurisdiction.
25. For the reasons mentioned hereinabove, the orders dated 30-6-2008 and 2-9-2008 are quashed. The petitioner is entitled to all consequential benefits flowing from this order. Accordingly, W.P. (S) Nos.5043 of 2008 and 1690 of 2009 are allowed to the extent indicated above.
26. In contempt case (civil) No.313 of 2008, the contempt notice is discharged. The respondents in the contempt petition are hereby warned not to recur such mistake in future.
27. Accordingly, the contempt case (civil) No.313 of 2008 is disposed of.
28. There shall be no order as to costs.